SCOTUS and ACA: What If?

AMA panel offers best "guesses" about latest ACA challenge.

WASHINGTON -- There is still a week until the latest Supreme Court showdown on the Affordable Care Act -- and likely months away from a ruling on King v. Burwell -- but pundits already are polishing their crystal balls.

For example, if the Supremes throw out subsidies, will that mean a trip in the way-back machine to a pre-Obamacare world?

That was just one of the questions put forward by Robert Wah, MD, president of the American Medical Association, during a panel discussion at the AMA's National Advocacy Conference on Wednesday. (Read MedPage Today's exclusive interview with Wah here.)

King v. Burwell is yet another opportunity for the Supreme Court to weigh the legality of the ACA.

This time around, the justices will weigh the intent of the ACA language to determine if the federal government will subsidize healthcare for beneficiaries who aren't receiving employer-sponsored health insurance in every state, or only in those states with their own exchanges. A plaintiff victory would make subsidies in the 34 states with federally-run exchanges illegal and could reverse the employer mandate in these states.

Charles "Chip" Kahn III, president of the Federation of American Hospitals (FAH) said that after meeting with a senator who is "chairman of a major committee" this week he heard an earful about how the government was going to lose the case.

"You would have thought that health reform was literally still being debated and had not been passed by the Congress many, many years ago."

Kahn said the case is a metaphor for all of the differences separating Republicans and Democrats.

"When you talk to anyone in Washington about the case, how they feel about the outcome really is determined by where they fall on the great political divide that the Affordable Care Act has become," he said.

Kahn is a Republican, but said he cannot see a way to offer true insurance reform and coverage without the "bells and whistles" provided in the exchanges

Kahn, by the way, has a lot of experience with the politics of healthcare -- back in the Clinton administration he was the EVP at the Health Insurance Association of American, and architect of the "Harry and Louise" commercials that sank Hillary Clinton's healthcare reform plan.

"I think it's a Republican illusion that they can undo this thing," he said.

But, if the courts should decide in favor of the plaintiff, Kahn predicts " a real meltdown" in several states, as they try to keep reforms in place without a stable exchange structure.

According to a joint analysis from the Robert Wood Johnson Foundation and the Urban Institute, if the plaintiff wins, the number of uninsured Americans would jump by 8.2 million.

Regarding an ACA reversal, John Rother, JD, president and CEO of the National Coalition on Health Care said, flatly, "We're not going back." Even considering the possibility was silly, he said.

The case, however, is admittedly a stumbling block. "As long as we have a debate about repeal, it's very hard to move toward more constructive dialogue about what modification we could agree to."

To that end, Wah also asked panelists what improvements they envisioned for the Affordable Care Act."What areas need to be resolved in order for the health system reform to be a success?"

Rother said the ACA had delivered on access and on insurance reform but fallen short on affordability. In particular, he said the Coalition hadn't predicted the rise of high-cost deductible plans.

"We need a better, higher value health system, one that people can afford not only when they pay premiums, but also when they need care," he said.

Rother, like Kahn, spent years in the healthcare reform trenches, although he was usually on the other said as the chief lobbyist for the AARP.

Alissa Fox, senior vice president at the Office of Policy and Representation for Blue Cross, Blue Shield Associations (BCBSA), said she's concerned about a health insurance tax that affects even the lowest cost plans. Employers who "self-fund" would be excluded but "[i]t actually increases the burden on individuals and small business."

Fox argued that the tax could cost affected families on average $400 per year and increase health costs by 2% to 2.5%, according to estimates from the Joint Committee on Taxation.

"Repealing that would be something we very much support," she said.

Fox acknowledged that removing the tax would create a hole in the funding but emphasized that "[the healthcare tax] is raising the cost of insurance as we're trying to address affordability."

Kahn said repealing any of the ACA taxes would be difficult. "[A]t the end of the day there's no free lunch and it's better to have explicit taxation and then have everybody covered," than to have a "Byzantine hydraulic system"of hospital financing with levels for every payer -- private, Medicare, and Medicaid -- he said.

Rother agreed. "It seems we are kidding ourselves if we think we can start repealing taxes and still have a decent program," he said.

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